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Cis v. Colvin

United States District Court, W.D. Wisconsin

May 24, 2017

SUSAN CIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Susan Cis seeks judicial review under 42 U.S.C. § 405(g) of a final decision of defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying her application for Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) benefits. On December 19, 2016, the court heard oral argument regarding plaintiff's specific contentions that the administrative law judge (“ALJ”) erred in failing: (1) to adopt significant limitations in plaintiff's residual functional capacity (“RFC”) as assessed by a consulting examiner; and (2) to give adequate consideration to the effect of plaintiff's obesity on her back impairment as required by Social Security Ruling 02-1P.

         For the reasons explained in this opinion, the court agrees that the ALJ should have acknowledged that the consultative examiner specialized in orthopedic medicine, had been appointed by the Social Security Administration (SSA), was familiar with its requirements, and performed a physical examination of Cis. Still, as also explained below, the court finds that the ALJ provided valid reasons for rejecting the consultative examiner's opinion, and he adopted an RFC assessment supported by substantial evidence. Similarly, while the ALJ did not conduct a detailed analysis of the effects of Cis's obesity, he sufficiently complied with his statutory and regulatory obligations, particularly in light of the fact that there was no evidence in the record regarding the effects of Cis's obesity. Accordingly, the court will affirm the ALJ's finding that Cis was not entitled to SSDI and SSI benefits.


         Plaintiff Susan Cis claims a disability onset date of June 16, 2011, because of possible fibromyalgia, chronic obstructive pulmonary disease, and problems with her cervical spine. (AR 56-59.) Cis testified that she has difficulty standing, sitting, and walking for more than 10-15 minutes at a time because of back pain and stiffness. (AR 55-56, 58.) She also testified to problems with balance, as well as stiffness and weakness in her hands, knees, and hips. (AR 57.) Cis was 52 years old when she applied for benefits, had an 11th grade education, and had past work experience as a cook at a daycare facility (light work), a factory helper (performed as heavy work), a janitor (medium work), and a cashier (light work) at gas stations. (AR 18, 44, 48-53, 66-68.)

         In her brief and at the oral argument, Cis conceded that the record contains limited medical information from her treating providers in 2011, apart from references to a “history” of fibromyalgia and lumbar degenerative disc disease. (AR 264-98 and 331-341.) However, two consulting physicians submitted opinions concerning Cis's physical condition in October 2012.

         On October 17, 2012, state agency physician, Dr. Jui Haker, performed an orthopedic and musculoskeletal examination with respect to Cis's hand, back, and knee pain. Cis reported her pain became progressively worse starting in 2001, and it became worse still following a car accident in 2011. Cis also reported being severely limited in her abilities, including: (1) being able to walk only half a block; (2) standing and sitting for 15 minutes at a time; (3) lifting a gallon of milk with both hands; and (4) climbing ladders and stairs with difficulty. Without explanation, Dr. Haker appears to have simply adopted the same limitations that Cis reported to him. (AR 361-65.)

         Dr. Haker's own physical examination of Cis revealed: tenderness to palpation in the paraspinal muscles of Cis's neck and lumbar spine, and in the sacroiliac joints of her lumbar spine; limited range of motion in her neck and knee joints; a negative straight leg raising test; normal strength in all of her muscles; normal gait; ability to get on and off the exam table without assistance; ability to squat midway to the floor; mild instability; and normal range of motion in her upper extremities, hip joints, and ankles. He noted that Cis performed movements in her neck and upper extremities slowly due to pain. X-rays showed mild degenerative changes in Cis's lumbar spine and right hand, and advanced degenerative changes in her right hand. In light of these limitations, Dr. Haker opined that Cis had a poor to fair prognosis and would require chronic pain management. Id.

         On October 24, 2012, state agency physician Dr. Mina Khorshidi conducted an independent review of Cis's medical records. He concluded that she was capable of light work, which included lifting 20 pounds and standing/walking six hours a day. (AR 102-04.) Dr. Khorshidi specifically considered Dr. Haker's opinion and his examination findings, but noted that Haker's limitations were based on Cis's self-reports and were inconsistent with his own physical examination of Cis. (AR 102.)

         Following Haker's consultative exam, Cis intermittently reported neck pain to her primary care physicians at Mercy Clinic in 2012 and 2013. (AR 382, 404-05, 476, 481.) On December 11, 2012, x-rays of Cis's cervical spine showed multilevel degenerative cervical disk disease with neural foraminal narrowing. (AR 437.)

         On August 8, 2013, Dr. Ronald Garcia diagnosed cervical spondylosis and chronic neck pain. He recommended physical therapy and over the counter pain medications. (AR 481.) On October 3, 2013, Cis saw Dr. Garcia again for low back, hip, leg, knee and ankle pain and to get disability paperwork signed. (AR 462.) At that time, Garcia ruled out fibromyalgia because Cis had only two out of 18 tender points, and he did not sign the disability paperwork because he did not have sufficient information to give an opinion. Instead, Dr. Garcia's exam showed that Cis had some limited range of motion in her spine, knees, and hips but normal muscle tone and strength. She also had minimal tenderness in her lower lumbar spine and hips. (AR 465-67.)

         II. ALJ's Decision

         On November 18, 2013, the ALJ held an administrative hearing at which Cis appeared with counsel. (AR 38.) The ALJ issued a written decision on January 9, 2014, finding Cis not disabled. While the ALJ found that Cis was severely impaired by obesity, fibromyalgia, chronic obstructive pulmonary disease, and degenerative disk disease of the cervical spine, he nevertheless concluded that Cis had the RFC to perform light work limited to: (1) no climbing of ropes, ladders, and scaffolding; (2) occasional climbing of ramps and stairs; (3) occasional balancing; and (4) avoiding more than occasional exposure to extreme temperature and humidity, hazards, fumes, dust odors, gases, and poorly ventilated environments. (AR 14-15.)

         In reaching his decision, the ALJ considered the state consultant medical opinions and found Dr. Khorshidi's opinion most persuasive. (AR 17.) He gave limited weight to Dr. Haker's opinion because it merely restated Cis's own report of her abilities, and it was inconsistent with Dr. Haker's examination, as well as the medical records as a whole, including Dr. Garcia's multiple physical exams conducted roughly one year later. Id. Adopting the limitations of Drs. Korshidi and Garcia in the determination of Cis's RFC and relying on the testimony of a vocational ...

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